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McSpadden v. Mahoney, 431 P.2d 432 (Okla. 1967). In order to
establish an inter vivos gift after the death of the alleged
donor, “the evidence must be clear, explicit, and convincing in
support of every element necessary to constitute a gift.” Estate
of Stinchcomb v. Stinchcomb, 674 P.2d 26, 30 (Okla. 1983). There
does not seem to be any dispute that the annuities were delivered
and accepted by the donees. Thus, if petitioner can prove
donative intent, the transfers will be considered to be completed
gifts which are not includable in decedent's gross estate.
Respondent claims that the required donative intent cannot be
supplied by a written durable power of attorney absent an express
written gift authorization. Petitioner contends that the
required donative intent is present because decedent authorized
her attorneys in fact to make the gifts, because decedent
ratified the gifts after the transfers, and because a written
durable power of attorney, even absent an express gift
authorization, is adequate to allow decedent's attorneys in fact
to make effective inter vivos gifts. In order to determine
whether the requisite donative intent existed, we must first look
to the record as a whole to determine whether decedent possessed
the requisite intent, taking into account the authority granted
to decedent's attorneys in fact. See Estate of Goldman v.
Commissioner, T.C. Memo. 1996-29.
Decedent's Intent To Make Gifts
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